United States v. Benjamin Corona-Garcia

REINHARDT, Circuit Judge, dissenting:

I dissent. While I agree with the majority’s decision concerning substitute counsel and the applicability of the Sentencing Guidelines, I do not join the part of the opinion that concerns the sufficiency of the evidence to convict Corona-Garcia. The majority’s reasoning cannot be reconciled with the plain language of our decision in United States v. Lopez-Alvarez, 970 F.2d 583 (9th Cir.1992) or the Supreme Court’s decision in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954). Because I believe the government failed to offer evidence that independently verifies Corona-Garcia’s confession that he entered the United States without the permission of the Attorney General, I would reverse his conviction.

The most important error in the majority opinion lies in its interpretation of the corpus delicti rule. That rule serves the important systemic interest in preventing the development of a coercive system of justice by discouraging government over-reliance on confessions. As the Supreme Court explained, “a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Escobedo v. Illinois, 378 U.S. 478, 488-89, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). See also Lopez-Alvarez, 970 F.2d at 589 n. 5.

Lopez-Alvarez and Opper require the state provide independent corroboration of the gravamen of the offense, apart from a confession. Lopez-Alvarez, 970 F.2d at 591. Nonetheless, the majority says the independent evidence need only “fortify, augment, or support” the confession, citing Black’s Law Dictionary. Slip op. 979 n. 4. While the term “corroboration” may be used for some purposes in the manner Black’s and the majority suggest, it may not be given that construction in confession cases. Supreme Court and Ninth Circuit case law on corpus delicti clearly foreclose affording such an insubstantial meaning to the corroboration requirement. In Lopez-Alvarez, we construed Opper as requiring that the state must offer evidence that independently verifies that the criminal conduct constituting the gravamen of the offense has occurred. In doing so, we made it clear that the government may not solely rely on the defendant’s confession.

After Opper, must there be any independent verification that criminal conduct has occurred ... ? The answer is that independent verification is still required. However, the state no longer need introduce independent tangible evidence supporting every element of the corpus de-licti. Instead, the state is required to support independently only the gravamen of the offense — the existence of the injury that forms the core of the offense and a link to a criminal actor — with tangible evidence.

Lopez-Alvarez, 970 F.2d at 591. We stated plainly that the evidence, apart from the confession, must “demonstrate” that the offense occurred. Id. at 590. The majority agrees that “the sum total of [the corroborating] evidence might well be insufficient, standing alone, to prove entry.” Slip op. at 979. If that is the case, the conviction cannot stand under Opper and Lopez-Alvarez. The evidence presented here simply does not establish independently that the gravamen of the offense occurred, and therefore is insufficient as a matter of law.

*982In addition to my disagreement with the majority’s assertion that the government need not establish independently the gravamen of the offense, I disagree with it regarding what constitutes the gravamen of the offense: “the injury that forms the core of the offense.” Id. at 591. As I see it, the evidence the government offers in this case does not even “fortify, augment or support” the gravamen of the criminal conduct at issue. The majority claims that the gravamen of the offense is entry, rather than illegal entry. With all due respect, I disagree. Entry into the United States, without more, is not a crime, and the corpus delicti cases make clear that the evidence (other than the confession) must establish “the injury against whose occurrence the law is directed.” Opper, 348 U.S. at 92, 75 S.Ct. 158. Similarly, in Lopez-Alvarez we said that the government must introduce evidence “that a crime has occurred.” 970 F.2d at 591. The government does not contest that “entry ... without the consent of the Attorney General” is the essence of the offense. See 8 U.S.C. § 1326. Without an illegal entry, there is no crime. To put it differently, the illegal entry is the injury.

While Corona-Garcia’s presence here corroborates that he entered the United States in some fashion, it does not corroborate the charge that he entered without the consent of the Attorney General. The majority mentions in a footnote the only evidence that could possibly corroborate the illegality of the entry, and its decision must hinge on the validity of that evidence. The evidence the majority notes is a “Certificate of Non-Existence” which purports to show that Corona-Garcia’s file reflects that he never sought permission to enter. The principal problem with the majority’s reliance on the Certificate, however, is that the government did not rely on it, either in its brief or at oral argument, notwithstanding the fact that the Certificate was raised at oral argument. Even more important, in response to a specific question the government identified for the court a list of all of the evidence on which the Court could properly rely, and, it deliberately omitted any reference to the Certificate of NonExistence.1

The government’s decision not to rely on the Certifícale should have caused the majority concern about the Certificate’s reliability; as it turns out, such concern is wholly warranted. As the majority correctly notes, the Certificate does not reflect that Corona-Garcia requested permanent residency in this country in 1988, even though he did. In addition, it does not reflect that he received temporary work authorization at that time, even though he did. However, the majority concludes that these defects are immaterial because the Certificate was only offered to prove that Corona-Garcia did not apply for permission to enter after 1996. But the point of Corona-Garcia’s argument, and obviously the reason the government declined to rely on the Certificate, is that the conceded errors in the Certificate show that it is inherently unreliable and incomplete. If the government cannot explain why the Certificate fails to reflect Corona-Garcia’s activities in 1988, (and it does not purport even to try to do so), we cannot assume that the Certificate accurately reflects his activities since 1996. Although the government recognizes this fact, the majority simply ignores it. I do not believe that we can uphold a conviction on the basis of unreliable government records on which the government itself is unwilling to rely.

Finally, in a half-hearted effort to find some corroboration, the majority says that the record shows that Corona-Garcia was deported to Mexico the previous year, and *983that this fact somehow corroborates the government’s charge that he entered illegally in 1997. This argument borders on the frivolous. That Corona-Garcia was deported on a previous occasion does not independently verify that when he entered most recently he did so without the Attorney General’s permission. The statute makes entry without permission unlawful, and none of the government’s evidence, apart from Corona-Gareia’s confession, verifies that he engaged in that conduct.

The rale against the unfettered use of confessions in criminal cases has stood as a bulwark against the rise of an inquisitorial system of justice since the time of the common law. In this case, the result it requires may seem overly technical or unnecessarily formalistic. But the safeguards established by the common law of criminal procedure, like those established by the Bill of Rights, will not long stand if we choose to apply them only in cases where we happen to think they are important. There can be little doubt that the government failed to introduce sufficient independent evidence against Corona-Garcia, aside from his confession. Any fair evaluation of the evidence in this case compels that conclusion. I believe that we are required to reverse Corofia-Gareia’s conviction under Opper and Lopez-Alvarez. Accordingly, I respectfully dissent.

. In response to a specific question asking the government to detail the corroborating evidence the court should consider in determining whether tire government had independently shown that Corona-Garcia entered the United States illegally, government counsel listed Corona-Garcia’s presence in this country, his having entered through Calexico previously, his statement that he entered through Calexico, and the distance between Calexico and the next federal district.